Suzuki to Get Trial on SUV Claims

Autos: Panel reopens challenge to Consumer Reports' veracity about its test of the Samurai.

A product defamation suit by Suzuki Motor Corp. against the publisher of Consumer Reports was revived Tuesday when a federal appellate panel in San Francisco ruled the auto maker should get a jury trial on its claims that the magazine rigged a driving test to show the Suzuki Samurai sport utility vehicle was easy to roll.

By ordering the case to trial--a decision New York-based Consumers Union says it will oppose--the U.S. 9th Circuit Court of Appeals panel reopens a challenge to the veracity of a magazine whose test reports are read and accepted as gospel by millions.

Consumer Reports has resurrected its 1988 Samurai test and its negative results in several special issues and fund-raising drives since the initial publication. Suzuki did not sue in 1988, but filed its claim after the magazine cited the Samurai test in a 1996 special issue.

George Ball, Suzuki's lead attorney in the case, said the ruling means Consumers Union "finally will have to answer in court for the false charges it has spread."

Consumers Union views the suit as an attack on the freedom of the press to comment on consumer goods. Consumers Union President Jim Gent said the nonprofit group is considering options, including asking the U.S. Supreme Court to review the appellate decision or seek a new hearing before the entire U.S. 9th Circuit Court of Appeals.

In a similar suit brought by Isuzu Motor Corp. two years ago, a federal jury in Los Angeles faulted Consumer Reports for publishing false information about the 1995-96 Isuzu Trooper. But the jury said Isuzu had not proved actual malice and rejected the car maker's product defamation claim.

Legal scholars say it is difficult to prove actual malice--the intentional publishing of false information in order to harm a reputation--in libel suits against reputable publications.

Nevertheless, Tuesday's ruling by a divided three-judge panel reverses a May 2000 finding by District Judge Alicemarie Stotler in Santa Ana that Suzuki probably would not be able to prove that Consumers Union intentionally set out to harm Suzuki's reputation and knowingly published false information to achieve that goal.

Negative reviews in Consumer Reports can kill a product's chances in the market. Indeed, sales of the Samurai, which was one of the top-selling small SUVs in the country in 1988, plummeted after the initial Consumer Reports review that year.

The Samurai review was the first time Consumer Reports had found a sport utility vehicle liable to roll over and marked the beginning of what has become a stream of criticism about SUVs.

Safety advocates who claim the SUVs are inherently unsafe because of their high center of gravity often cite Consumer Reports' Samurai review in arguments.

But the appellate panel in its 2-1 decision held that the district court, in rejecting a trial on Suzuki's claims more than two years ago, "did not give adequate credit to ... evidence of test-rigging" by the magazine.

A "reasonable jury could find by clear and convincing evidence that [Consumers Union] sought to produce a predetermined result in the Samurai test," the panel ruled.